Judge Jill Feeney, Case Number: 23STCV02868, Date: 2023-08-15 Tentative Ruling

This is an action for sexual battery, sexual assault, negligent, negligent supervision, and intentional infliction of emotional distress arising from a sexual assault which is alleged to have taken place in March 2016. Plaintiff alleges that Defendant Tremain Aldon Neverson, aka Trey Songz, sexually assaulted her during a party in West Hills, California. (FAC ¶¶30-33.)

On February 9, 2023, Plaintiff filed her Complaint against Defendants Tremaine Aldon Neverson aka Trey Songz, Trey Songz Productions, LLC, Kevin Liles, 300 Entertainment, LLC, and Atlantic Records Group, LLC (“Atlantic”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

“[A]n employer can be liable to a third person for negligently . . . supervising . . . an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurred. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at p. 1054.)

To be liable for negligent supervision, there must be a connection between the employment and injury to a third person. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Id. at p. 1339.) Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom the employees come into contact, regardless of their relationship to the employer (Id at p.1341.)

Here, the FAC states that Liles managed and promoted Songz’s career as a music artist. (FAC ¶9.) Atlantic operated as Songz’s record label, managing and promoting Songz’s image, brand, and career. (FAC ¶10.) All defendants were agents, representatives, or employees of each other. (FAC ¶14.)

Songz struck a woman in 2012, sexually assaulted another woman in 2014, and sexually assaulted a third woman in 2014. (FAC ¶¶16-18.) Songz was also sentenced to 18 months of probation and required to attend anger management classes in 2016 for assaulting a police officer in Detroit. (FAC ¶19.)

Plaintiff met Songz at a party hosted at a recording studio in Burbank where Songz recorded music for Atlantic Records. (FAC ¶27.) Movants emphasized Songz’s charisma, good looks, and sex appeal in their promotions. (FAC ¶28.) Movants designed Songz’s brand to make him more appealing to women. (FAC ¶28.) Plaintiff alleges she was attracted to Songz and believed she would be safe with Songz because she believed Movants’ brand strategy was truthful. (FAC ¶29.) Plaintiff was a fan of Songz and bought into Movants’ brand strategy. (FAC ¶29.)

On March 24, 2016, Plaintiff attended a party at a home located in West Hills, California. (FAC ¶30.) Plaintiff and Songz went upstairs in the home to engage in consensual sex. (FAC ¶31.) Despite Plaintiff’s refusal to participate in anal intercourse, Songz threw Plaintiff on the ground, ripped her clothes, and proceeded to engage in anal intercourse without Plaintiff’s consent. (FAC ¶32.)

The FAC alleges that Songz was Movants’ employee/agent because it alleges each Defendant was an employee or agent of each other. However, the allegations are insufficient to show that the alleged assault was connected with Songz’s employment/agency with either Movant. The facts alleged show that Movants employed Songz and marketed him as attractive to women despite his history of sexually assaulting women.

Plaintiff met Songz at a party at a recording studio and they began a relationship that included consensual sex. There is no allegation that Movants hosted or were at the party. Songz later allegedly assaulted Plaintiff at a private party in a private home. Again, there is no allegation that Movants hosted or were at the party.

Although the facts alleged show Movants employed Songz as a music artist and managed his image and brand, there are no facts connecting the assault to Songz’s employment as a music artist. There are no allegations that Songz was working at the time of the assault or that the party where the assault took place was connected to Songz’s employment with Movants.

An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.) Generally, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct, unless an exception applies. (Id.) A person may have an affirmative duty to protect the victim of another’s harm if that person has a special relationship with the victim or the person who created the harm. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) A special relationship is one that would give a victim a right to expect protection, such as parent-child relationships, common carrier-passenger relationships, employer-employee relationships and innkeeper-guest relationships. (Id at p. 620.)

Here, Plaintiff has alleged the existence of a special relationship between Movants and Songz that of employer/employee. The issue then becomes the application of the Rowland factors. (Brown 11 Cal.5th at 212-213.) The Rowland factors include: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

The cause of action alleged here is negligent supervision. “The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340.)

“Failure to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom its employees come into contact, regardless of their relationship to the employer.” (Id. at 1341.)

To state a cause of action for negligent supervision, a plaintiff must allege that an employer’s negligence in supervision was a substantial factor in causing plaintiff’s harm. (CACI No. 426.) Where the facts are such that the only reasonable conclusion is the absence of causation, proximate causation may be decided as a matter of law. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353.)

Plaintiff argues that the FAC does states facts sufficient to show Movants caused Plaintiff’s injury because their conduct was a substantial factor in bringing about her injury, citing Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co. (2018) 5 Cal.5th 216, 223.) The Court in Liberty ruled that an employer’s negligent supervision did cause an incident of molestation because California case law expressly recognized that negligent hiring, retention, and supervision may be a substantial factor in sexual molestation perpetrated by an employee, depending on the facts presented. (Liberty at 223.) Specifically, the employer in Liberty appointed an unfit employee to act as assistant superintendent on a construction project at a middle school. The employee sexually abused a student there. The Court held that the employer’s negligent supervision was an indirect cause of the student’s injuries. (Id. at 225.)

Plaintiff also cites to J.W. Watchtower Bible and Tract Society of New York (2018) 29 Cal.App.5th 1142, 1164-1165 support of her position. In J.W. Watchtower, the Court found that proximate cause was sufficiently alleged where a church allowed an individual known to have pedophile proclivities to be made an elder in the church, a position of authority, which created the opportunity for the individual to molest the plaintiff at a sleepover that was not a church sponsored event.

A number of other cases have also found proximate causation in sexual molestation cases. (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902 (child sexually assaulted by county social worker who used county van to transport child to apartment where sexual assault took place); Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855 (teacher who sexually assaulted child at school); Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 385 (scout master sexually abused child at officially sanctioned events and at the scoutmaster’s home); Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 833 (pastor sexually abused child at the pastor’s home.)

All these cases are distinct from the one at hand. In each case, either there was a link between the conduct and the employment, such as in Liberty, or the person directly responsible for the sexual assault was elevated to a position of authority within the organization which contributed to the assault of a minor even though the sexual assault occurred outside of an organizational event, such as in J.W. Watchtower.

Here, there is no direct link between the sexual assault and the employment alleged. Plaintiff essentially argues that Movants’ conduct branding Songz as a music artist who was attractive to women caused Plaintiff’s injuries by attracting Plaintiff to Songz. This is insufficient.

Moreover, there are no facts alleged that Movants engaged in any conduct that directly or indirectly caused Plaintiff to be sexually assaulted by Songz at the March 2016 party. Rather, it appears from the facts alleged that the March 2016 party was unrelated to Movants.

This is also not a situation where Songz was elevated by Movants to a position of a moral authority over children or anybody else. Marketing Songz in a way that made him attractive to women does not approach the situation in J.W. Watchtower.

As the Court stated in J.W. Watchtower, whether proximate cause is adequately pled in a case involving sexual molestation perpetrated by employee must be analyzed on a case by case basis. (J.W. Watchtower at 1165.) Here, the facts do not warrant a finding that the cause of action is adequately pled.

Movants also demur to the fifth cause of action for Intentional Infliction of Emotional Distress (“IIED”) on the grounds that the FAC fails to allege that Movants engaged in extreme and outrageous conduct and because there was no proximate cause.

The elements for a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Here, the FAC alleges that Songz intended his behavior at the March 2016 party to cause Plaintiff pain, injury, and extreme emotional distress. (FAC ¶79.) Movants were aware of Songz’s history of sexual abuse, created a foreseeable risk of harm to Plaintiff, and did nothing to prevent Songz from sexually abusing Plaintiff. (FAC ¶80.) Movants’ inaction and negligence was intolerable to civilized society and exceeded all bounds of decency. (FAC ¶82.) Movants’ conduct caused Plaintiff emotional distress. (FAC ¶86.)

The FAC alleges that Movants marketed Songz as a music artist who was attractive to women despite knowing of his history of sexual assault against women. However, Movants’ alleged failure to prevent Songz from sexually abusing Plaintiff does not rise to the level of outrageous and extreme behavior sufficient to support a cause of action for IIED because the facts merely show Movants marketed Songz to attract female fans. Engaging in a marketing campaign is not conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community. There are no other facts describing Movants’ conduct in the FAC. Conclusory allegations that Movants actions were intolerable are insufficient to support a cause of action for IIED.